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[DOCID: f:ce95171m.wais]

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LEO JOURNAGAN CONSTRUCTION COMPANY
October 19, 1995
CENT 95-171-M


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1730 K STREET, N.W., SUITE 600
                       WASHINGTON, D.C.  20006


                           October 19, 1995

SECRETARY OF LABOR,              :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA),         :  Docket No. CENT 95-171-M
                Petitioner       :  A. C. No. 23-02068-05507
                                 :
             v.                  :  Journagan Portable #12MC
                                 :
LEO JOURNAGAN CONSTRUCTION       :
  COMPANY,                       :
                Respondent       :

                    ORDER TO ANSWER OR SHOW CAUSE
                           ORDER TO ADVISE

Before: Judge Merlin

     This  case  is before me upon a petition for assessment of
a civil  penalty under section 105(d) of the Federal Mine Safety
and  Health  Act  of 1977.  On May 5, 1995, the Solicitor filed a
penalty  petition  for this  case.   On  July  14, 1995, an
order to showcause was issued directing  the  operator  to file
its  answer to the penalty petition.  The operator has not filed
an answer.  It must do so or be held in default  and  liable for
the full amount of the assessed penalties.

     On August 28, 1995, a Conference  Litigation  Representative
(CLR)  filed  with  the  Commission a copy  of  an unsigned joint
motion to approve settlement which was being sent to the operator
for its signature.[1]  The motion provides that the operator would
agree to pay the originally assessed penalty.

     On September 22, 1995, the CLR filed a copy of another unsigned
joint settlement motion it was sending to the operator for signature.
According to this motion, the parties would settle this case by
having the operator provide training in lieu of the proposed assessed
penalty.

     It is well established that the Act mandates assessment of a
monetary penalty for any violation of a mandatory safety standard.
Island Creek Company, 2 FMSHRC 279, 280 (February 1980); Van Mulvehill
Coal Co., Inc., 2 FMSHRC 283, 284 (February 1980); Tazco, Inc., 3
FMSHRC 1895, 1896 (August 1981).  The most recent unsigned settlement
motion should not, therefore, be pursued. It is impermissible under
the Act.

     Because of the foregoing circumstances participation by the
Solicitor would be helpful.

     In light of the foregoing, it is ORDERED that the operator
file an answer in this case within 30 days of the date of this
order or show cause why it should not be held in default.

     It is further ORDERED that within 45 days of the date of this
order the Solicitor submit a settlement motion or advise whether a
hearing will be necessary.


                                Paul Merlin
                                Chief Administrative Law Judge


Distribution:  (Certified Mail)

Douglas White, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Blvd., Arlington, VA 22203

Margaret Miller, Office of the Solicitor, U.S. Department of Labor,
1999 Broadway, Suite 1600, Denver, CO 80202-5716

Daniel Haupt, Conference & Litigation Representative, U.S. Department
of Labor, MSHA, 1100 Commerce St., Rm. 4C50, Dallas, TX  75242-0499

Mr. John A. View III, VP, Leo Journagan Construction Co., Inc., 3003
East Chestnut Expressway, #1200, Springfield, MO 65802

/gl

**FOOTNOTES**

     [1]:  The CLR has failed to enter an appearance before the
Commission.